Is Your Defense Lawyer Being Honest With You?

Some defense lawyers have a bad habit of over promising and under delivering. Many times a potential client will come to me and tell me how a different defense lawyer they met with promised them all kinds of things. Sometimes the promise is a better plea, and other times the promise is a dismal of a case. In reality no honest or ethical defense lawyer can promise an outcome in a criminal case. The reason is that there are too many variables. The variable range from the facts of a given case, to who the prosecutor is, to who the judge is or who the jurors are.

A good and honest defense lawyer will explain to a client or a potential client that they can’t make any guarantees. I have lost potential clients over the years because I would not promise them a certain outcome. I have had potential clients tell me they would hire me only if I guaranteed a dismissal.

Another area where a good defense lawyer will be honest with the client is when it comes to giving bad news. I don’t like to give bad news to clients but I know it is part of my job. I have heard stories of unethical lawyers simply choosing not to give their clients bad news and leaving the clients in the dark. A good and ethical lawyer will not only give good news to their clients but also bad news that may be hard to hear. If I have a bad case with bad facts and I know it will be difficult to win at trial I tell my clients. I don’t sugar coat the news because that is not helpful to my client.

In my experience most of the defense lawyers in Phoenix, and in the Phoenix greater metro area are honest and would never be dishonest with their clients but unfortunately there are bad apples. There are bad apples in every profession and the profession of criminal defense lawyers is no different.

Questions to ask a DUI Lawyer Before Hiring Them in Arizona

Knowing which lawyer to hire for your DUI is a major decision. Making the correct decision can have a major outcome on the case and be the difference between no jail and jail or the difference in thousands of dollars in fines. The first question you should ask a lawyer is if they are actually a DUI lawyer? If a lawyer tells you they do mostly civil law but do a few DUI cases a year they are probably not the right person for your case. Ask the lawyer how many DUI cases they handle a year. If the person tells you they only do a handful of cases that is probably not the right person for you also. I tell my clients that I handle several hundred DUI cases a year and this tells potential clients several things. First, it tells them that I know the process and will be able to walk them through it. Second, it tells them that I probably know the latest laws.

Another important question to ask a a potential lawyer for your DUI cases is how long have they been practicing in the field of DUI. An attorney may have 20 years experience but if that experience is in a different area of law how will that help your in your DUI. By asking the two simple questions of a prospective DUI attorney you will be better off.

Dealing with Police During DUI Stop in Arizona

A common question I get from people worried about being charged with a DUI in Arizona is what they should do if stopped by the police for suspicion of DUI. The first thing you should do is be nice to the police officer. If you are rude and or hostile this will not help your situation. The more combative you are the more agitated the officer will be with you. I once had a client that threw his keys as far as he could when the officer asked for the keys, this is not helpful. Remember that the officer is taking mental notes on how you are acting. If you are rude and or disrespectful your actions will be noted and will make their way into the officer’s report. If you wouldn’t want a jury hearing about how rude you were, there is a simple solution, don’t be rude.

Being polite to the officer does not mean you should give up your rights. It is important that you know your rights and exercise them. The first thing to remember is that you are better off not doing any of the field sobreity tests. The tests are not your friends and they are designed for you to fail them. There is a lot of published science on how the tests are designed for you to fail them. Most people would have a hard time doing the tests sober. You should provide the officers with your driver’s license, insurance, and registration. Obviously, if you don’t have the documents this will be a problem.

At some point the officer will probably ask he or she can draw your blood. Some police departments still rely on breath tests, but most of the major cities have switched to blood. The reason for the switch is that blood is more accurate. Under Arizona law you should submit to the blood draw. If you do not you could lose your license for a year even if you are not convicted of a DUI. If you don’t submit to the blood draw the officer will usually obtain a warrant. Once the warrant is obtained the officer can take your blood. If the suspect is being difficult they will be strapped into a chair and have the blood taken by force.

As always the less information you volunteer to the officer the better off you will be. The officer will usually say they are just trying to figure out what is going on and are not looking to charge you with a DUI. This is usually not true. Trying to talk your way out of the bad situation you are in is rarely a good idea. Keep your composure, keep calm and contact a good DUI lawyer.

Understanding Felony DUI Charge in Arizona

Most often when a person is charged with a DUI in Arizona it is a misdemeanor. There are times, however, when a DUI can be charged as a felony. A felony is defined as any crime that can be punished by over one year in jail. If a person has been convicted of two prior DUI in the past seven years the charge can be a felony. Also, if a person gets a DUI charge while their license is suspended the charge can also be a felony. With this type of felony charge a prosecutor has a lot of discretion as to whether they want to charge the DUI as a felony or a misdemeanor.

The full statute is below:

28-1383. Aggravated driving or actual physical control while under the influence; violation; classification; definition

A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following:

1. Commits a violation of section 28-1381, section 28-1382 or this section while the person’s driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person’s driver license or privilege to drive as a result of violating section 28-1381 or 28-1382 or under section 28-1385.

2. Within a period of eighty-four months commits a third or subsequent violation of section 28-1381, section 28-1382 or this section or is convicted of a violation of section 28-1381, section 28-1382 or this section and has previously been convicted of any combination of convictions of section 28-1381, section 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.

3. While a person under fifteen years of age is in the vehicle, commits a violation of either:

(a) Section 28-1381.

(b) Section 28-1382.

4. While the person is ordered by the court or required pursuant to section 28-3319 by the department to equip any motor vehicle the person operates with a certified ignition interlock device, commits a violation of section 28-1381, section 28-1382 or this section.

B. The dates of the commission of the offenses are the determining factor in applying the eighty-four month provision provided in subsection A, paragraph 2 of this section regardless of the sequence in which the offenses were committed. For the purposes of this section, a third or subsequent violation for which a conviction occurs does not include a conviction for an offense arising out of the same series of acts. The time that a probationer is found to be on absconder status or the time that a person is incarcerated in any state, federal, county or city jail or correctional facility is excluded when determining the eighty-four month period provided in subsection A, paragraph 2 and subsection E of this section.

C. The notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in section 28-3318 or pursuant to the laws of the state issuing the license.

D. A person is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than four months in prison if the person is convicted under either of the following:

1. Subsection A, paragraph 1 of this section.

2. Subsection A, paragraph 2 of this section and within an eighty-four month period has been convicted of two prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section.

E. A person who is convicted under subsection A, paragraph 2 of this section and who within an eighty-four month period has been convicted of three or more prior violations of section 28-1381, section 28-1382 or this section, or any combination of those sections, or acts in another jurisdiction that if committed in this state would be a violation of section 28-1381, section 28-1382 or this section is not eligible for probation, pardon, commutation or suspension of sentence or release on any other basis until the person has served not less than eight months in prison.

F. A person who is convicted under subsection A, paragraph 3, subdivision (a) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1381.

G. A person who is convicted under subsection A, paragraph 3, subdivision (b) of this section shall serve at least the minimum term of incarceration required pursuant to section 28-1382.

H. A person who is convicted of a violation of this section shall attend and complete alcohol or other drug screening, education or treatment from an approved facility. If the person fails to comply with this subsection and is placed on probation, in addition to the provisions of section 13-901 the court may order that the person be incarcerated as a term of probation as follows:

1. For a person sentenced pursuant to subsection D of this section, for an individual period of not more than four months and a total period of not more than one year.

2. For a person sentenced pursuant to subsection E of this section, for an individual period of not more than eight months and a total period of not more than two years.

I. The time that a person spends in custody pursuant to subsection H of this section shall not be counted towards the sentence imposed if the person’s probation is revoked and the person is sentenced to prison after revocation of probation.

J. On a conviction for a violation of this section, the court:

1. Shall report the conviction to the department. On receipt of the report, the department shall revoke the driving privilege of the person. The department shall not issue the person a new driver license within one year of the date of the conviction and shall require the person to equip any motor vehicle the person operates with a certified ignition interlock device pursuant to section 28-3319. In addition, the court may order the person to equip any motor vehicle the person operates with a certified ignition interlock device for more than twenty-four months beginning on the date of reinstatement of the person’s driving privilege following a suspension or revocation or on the date of the department’s receipt of the report of conviction, whichever occurs later. The person who operates a motor vehicle with a certified ignition interlock device under this paragraph shall comply with article 5 of this chapter.

2. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of two hundred fifty dollars. If the conviction occurred in the superior court or a justice court, the court shall transmit the monies received pursuant to this paragraph to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the monies received pursuant to this paragraph to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer. The state treasurer shall deposit the monies received in the driving under the influence abatement fund established by section 28-1304. Any fine imposed for a violation of this section and any assessments, restitution and incarceration costs shall be paid before the assessment prescribed in this paragraph.

3. Shall order the person to pay a fine of not less than seven hundred fifty dollars.

4. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the prison construction and operations fund established by section 41-1651. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

5. In addition to any other penalty prescribed by law, shall order the person to pay an additional assessment of one thousand five hundred dollars to be deposited by the state treasurer in the public safety equipment fund established by section 41-1723. This assessment is not subject to any surcharge. If the conviction occurred in the superior court or a justice court, the court shall transmit the assessed monies to the county treasurer. If the conviction occurred in a municipal court, the court shall transmit the assessed monies to the city treasurer. The city or county treasurer shall transmit the monies received to the state treasurer.

K. After completing the period of suspension required by section 28-1385, a person whose driving privilege is revoked for a violation of subsection A, paragraph 3 of this section may apply to the department for a special ignition interlock restricted driver license pursuant to section 28-1401.

L. Aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs committed under:

1. Subsection A, paragraph 1, 2 or 4 of this section is a class 4 felony.

2. Subsection A, paragraph 3 of this section is a class 6 felony.

M. For the purposes of this section, “suspension, cancellation, revocation or refusal” means any suspension, cancellation, revocation or refusal.

Importance of Giving Entire Story to Your Defense Lawyer

One of the things that can be most harmful to my client’s case is when the client is not honest with me. There are different reasons why clients will sometimes bend the truth when speaking with their defense lawyers. Sometimes the client is embarrassed and feels awkward about telling the facts to their lawyer. Sometimes the client is not honest because they think bending the truth will somehow help their case.

There are several bad things that can, and do occur when clients are not honest with their lawyers. First, the lawyer can’t do everything to the best of their ability if they don’t have all the information. In Arizona this often occurs in DUI cases. A client that doesn’t give the full story can hamper my ability to properly defend them. There have been countless times over the past seven years where I could have done more in DUI cases if they client had been honest with me from the start. Besides DUI cases I have also had clients not be honest with on the issue of probation. A lot of the time the only way I know that my client is on probation is if they tell me. If the client keeps the information from me it can greatly harm their case.

Being honest with your defense lawyer can be difficult for the reasons stated above but always remember that your lawyer is on your side and that the more honest you are with them the more they will be able to help you.

How Much Should You Pay Your DUI Lawyer?

One of the most difficult decisions facing someone charged with a DUI is which lawyer to hire. One main factor in deciding which lawyer to hire is how much they charge. Some lawyers in the Phoenix area might charge as little as several hundred dollars while others charge over 10,000 dollars. As you can see there is a very wide gap in what people charge.

Generally, with defense lawyers you get what you pay for. If you hire the cheapest lawyer you can find you will probably regret your decision. If most lawyers tell you they will charge you 5,000 dollars but one lawyer tells you they will charge 500 dollars what do you think it says about that lawyer? When looking for a good DUI defense lawyer saving a few bucks up front could come back to haunt you in the end.

The prices that the Benikov Law Firm offers our clients are not cheap. The reason for this is because we believe you pay for quality. A good steakhouse charges a lot more for a sandwich then a fast food place. The Benikov Law Firm has gained a large amount of experience in DUI matters over the past eight years and thousands of DUI cases handled.

I recommend potential clients speak to more than one DUI lawyer before making a decision. After doing this a client will have a better idea of what a reasonable price to pay is.

What Kind of Person Needs a Defense Lawyer?

What Kind of Person Needs a Defense Lawyer?
As a criminal defense lawyer I get this questions lot. The person asking is usually implying that only a guilty or a bad person needs a criminal defense attorney. The question is usually an offsite of, how can you defense those people?

The answer is that lots of non criminals need defense lawyers. I have represented many people that were found to be innocent. Just because someone is charged with a crime does not mean they are guilty of that crime. This is often difficult for people to understand. Most people that are not familiar with our criminal justice system falsly assume that just because someone has been charged with a crime means they are guilty. In reality this is not true. The police are people and people make mistakes. I have had countless cases over the years where a person is charged that should not have been.

I represented a family friend several years ago who turned out to be such a case. The friend had a dispute with a neighbor. The neighbor over reacted and called the police and my friend got charged with several crimes. My friend should not have been charged as his actions did not come to a standard needed to show criminal behavior. I tried to get the prosecutor to dismiss the case but they would not. It was only after we went to trial, and I won the case that my friend was able to keep a criminal conviction off his record. Next time you hear of a person being charged with a crime don’t assume they are guilty.

Emotional Toll of Being Charged With a DUI in Arizona

Being charged with a DUI in Arizona can take a large emotional toll. There are several steps a person can take to help them deal with the emotional toll. The first step is to hire a good DUI lawyer. An experienced and knowledgeable defense lawyer can answer many of the questions that come up and make everything less scary. When a person is charged with a DUI they have a million questions and not a lot of answers. Another step that will help with the emotional toll is to understand that things will get better. Many times my clients are being charged with a crime for the first time in their life. It is part of my job to help assure them that they will be able to move on with their life and that things will get better. Oftentimes my clients look back on the experience of being charged with a DUI and say they were more scared than they should have been.

Advice on Avoiding Being Charged with a DUI in Arizona

Many people in Arizona have heard that you have to have a BAC of over .08 to be convicted of a DUI. This is partially true. In Arizona there are several different DUI statutes. The one that most people think of is that a person who has a BAC of over .08 can be charged with a DUI. The statute that most people don’t know about is that a person is impaired to the slightest degree can also be charged with a DUI.

What this means is that you can have a BAC of under .08 and still be charged. I have seen cases where people with BAC of .06 and .05 have been charged with DUI in Arizona. Several years ago I represented a woman who had a BAC of .068. The prosecutor told me that since she had driver poorly and done poorly on the field sobriety tests he would not dismiss the charges even though her BAC was under .08. In general, prosecutor’s are unwilling to proceed on DUI cases where the reading is under .08. It took a long time for me to convince the prosecutor to offer my client a Reckless Driving charge instead of a DUI. The bottom line is you have drank alcohol and you feel impaired or buzzed in anyway avoid driving. There are so many cheaper alternatives today such as Taxi services, Uber, Lyft, and designated drivers.

Also remember that if you have drugs in your system you can also be charged with a DUI in Arizona. Arizona has a drug DUI statute that says if you have an illegal drug in your system you can be charged with a DUI. It does’t matter under the statute, how recently you ingested the drug. Also remember that the impaired DUI charge and the Drug DUI charge are not mutually exclusive. What his mean is that you can be charged with both. This is actually very normal and I see this with my clients often.

What Does Domestic Violence Designation Mean in Arizona?

A lot of my clients are charged with what are called Domestic Violence (”DV”) crimes. In Arizona Domestic Violence is a designation and not a crime in itself. So a person can be charged with Assault and have it be non Domestic Violence. A person can also be charged with Assault and it could have a Domestic Violence designation.

Most people think that the domestic violence designation applies to only romantic partners like husbands, wives, boyfriends and girlfriends, but this is not true. Under the Arizona statute Domestic Violence has a wide ranging definition. Relationships such as relatives, or roommates fall under the Domestic Violence Statute in Arizona. Several years ago I represented a roommate that got into a fight with his college roommate. Because the two had been living together the crime was designated a Domestic Violence. In Arizona a domestic violence offense can be charged as a misdemeanor or a felony.

the full language of Arizona’s Domestic Violence statute is below:

13-3601. Domestic violence; definition; classification; sentencing option; arrest and procedure for violation; weapon seizure

A. “Domestic violence” means any act that is a dangerous crime against children as defined in section 13-705 or an offense prescribed in section 13-1102, 13-1103, 13-1104, 13-1105, 13-1201, 13-1202, 13-1203, 13-1204, 13-1302, 13-1303, 13-1304, 13-1406, 13-1425, 13-1502, 13-1503, 13-1504, 13-1602 or 13-2810, section 13-2904, subsection A, paragraph 1, 2, 3 or 6, section 13-2910, subsection A, paragraph 8 or 9, section 13-2915, subsection A, paragraph 3 or section 13-2916, 13-2921, 13-2921.01, 13-2923, 13-3019, 13-3601.02 or 13-3623, if any of the following applies:

1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.

2. The victim and the defendant have a child in common.

3. The victim or the defendant is pregnant by the other party.

4. The victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.

5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.

6. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:

(a) The type of relationship.

(b) The length of the relationship.

© The frequency of the interaction between the victim and the defendant.

(d) If the relationship has terminated, the length of time since the termination.

B. A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that domestic violence has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense is a felony or a misdemeanor and whether the offense was committed within or without the presence of the peace officer. In cases of domestic violence involving the infliction of physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, the peace officer shall arrest a person who is at least fifteen years of age, with or without a warrant, if the officer has probable cause to believe that the offense has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense was committed within or without the presence of the peace officer, unless the officer has reasonable grounds to believe that the circumstances at the time are such that the victim will be protected from further injury. Failure to make an arrest does not give rise to civil liability except pursuant to section 12-820.02. In order to arrest both parties, the peace officer shall have probable cause to believe that both parties independently have committed an act of domestic violence. An act of self-defense that is justified under chapter 4 of this title is not deemed to be an act of domestic violence. The release procedures available under section 13-3883, subsection A, paragraph 4 and section 13-3903 are not applicable to arrests made pursuant to this subsection.

C. A peace officer may question the persons who are present to determine if a firearm is present on the premises. On learning or observing that a firearm is present on the premises, the peace officer may temporarily seize the firearm if the firearm is in plain view or was found pursuant to a consent to search and if the officer reasonably believes that the firearm would expose the victim or another person in the household to a risk of serious bodily injury or death. A firearm that is owned or possessed by the victim shall not be seized unless there is probable cause to believe that both parties independently have committed an act of domestic violence.

D. If a firearm is seized pursuant to subsection C of this section, the peace officer shall give the owner or possessor of the firearm a receipt for each seized firearm. The receipt shall indicate the identification or serial number or other identifying characteristic of each seized firearm. Each seized firearm shall be held for at least seventy-two hours by the law enforcement agency that seized the firearm.

E. If a firearm is seized pursuant to subsection C of this section, the victim shall be notified by a peace officer before the firearm is released from temporary custody.

F. If there is reasonable cause to believe that returning a firearm to the owner or possessor may endanger the victim, the person who reported the assault or threat or another person in the household, the prosecutor shall file a notice of intent to retain the firearm in the appropriate superior, justice or municipal court. The prosecutor shall serve notice on the owner or possessor of the firearm by certified mail. The notice shall state that the firearm will be retained for not more than six months following the date of seizure. On receipt of the notice, the owner or possessor may request a hearing for the return of the firearm, to dispute the grounds for seizure or to request an earlier return date. The court shall hold the hearing within ten days after receiving the owner’s or possessor’s request for a hearing. At the hearing, unless the court determines that the return of the firearm may endanger the victim, the person who reported the assault or threat or another person in the household, the court shall order the return of the firearm to the owner or possessor.

G. A peace officer is not liable for any act or omission in the good faith exercise of the officer’s duties under subsections C, D, E and F of this section.

H. Each indictment, information, complaint, summons or warrant that is issued and that involves domestic violence shall state that the offense involved domestic violence and shall be designated by the letters DV. A domestic violence charge shall not be dismissed or a domestic violence conviction shall not be set aside for failure to comply with this subsection.

I. A person who is arrested pursuant to subsection B of this section may be released from custody in accordance with the Arizona rules of criminal procedure or any other applicable statute. Any order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary to provide for the protection of the alleged victim and other specifically designated persons and may provide for additional conditions that the court deems appropriate, including participation in any counseling programs available to the defendant.

J. When a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer shall inform in writing any alleged or potential victim of the procedures and resources available for the protection of the victim including:

1. An order of protection pursuant to section 13-3602, an injunction pursuant to section 25-315 and an injunction against harassment pursuant to section 12-1809.

2. The emergency telephone number for the local police agency.

3. Telephone numbers for emergency services in the local community.

4. Websites for local resources related to domestic violence.

K. A peace officer is not civilly liable for noncompliance with subsection J of this section.

L. If a person is convicted of an offense involving domestic violence and the victim was pregnant at the time of the commission of the offense, at the time of sentencing the court shall take into consideration the fact that the victim was pregnant and may increase the sentence.

M. An offense that is included in domestic violence carries the classification prescribed in the section of this title in which the offense is classified. If the defendant committed a felony offense listed in subsection A of this section against a pregnant victim and knew that the victim was pregnant or if the defendant committed a felony offense causing physical injury to a pregnant victim and knew that the victim was pregnant, the maximum sentence otherwise authorized for that violation shall be increased by up to two years.

N. When a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer shall determine if a minor is present. If a minor is present, the peace officer shall conduct a child welfare check to determine if the child is safe and if the child might be a victim of domestic violence or child abuse.